Texas' ban over once legal hemp product, Delta 8, raises questions over legality

HOUSTON, Texas (KTRK) -- Inside the Oil Well dispensary in southwest Houston, owner Colin Valencia said he has removed all of his Delta 8 products.

"It's going to be a surprise to a lot of people," Valencia said.

It's a surprise because when ABC13 met Valencia earlier this year, Delta 8 products were his best sellers.

"It was a prime seller and a prime interest of customers, and they really enjoyed the benefits of it," said Valencia.

Delta 8 is a cannabinoid sold as edibles, tinctures, pills, topical ointment, you can smoke it and vape it. Most CBD dispensaries and vape stores sell it.

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This lush green plant is creating buzz in Texas. ABC13 reporter Steve Campion investigated what it is, its effects on the body and whether or not it is legal in Texas.



"We've heard of vets with PTSD who use these products for things like anxiety, dealing with stress and emotions. There's also people who use these products for sleep regulation," said Zachary Maxwell with Texas Hemp Growers. "Our association recently, during the state session, actually estimated that the Delta 8 market is around about $50 million in Texas."

Delta 8 is derived from hemp cannabis. It took off after the 2018 Farm Bill legalized hemp production federally. It is a THC product and, up until last week, it was never explicitly listed on the state's controlled substance list.

"A lot of the industry has been operating under the assumption that Delta 8 is legal or that it exists inside of this gray area, and unfortunately, as we are learning, this is not the case. These products have in fact been illegal since the beginning of this year," said Maxwell.

On Oct. 15 the Texas Department of State Health Services posted an update on their Consumable Hemp Program page saying in part, "All other forms of THC, including Delta 8 in any concentration and Delta 9 exceeding 0.3%, are considered Schedule I controlled substances."

"And if you're caught with as much as a Delta 8 vape cartridge or even a package of gummies, you could be looking at a felony offense punishable up to two years in prison and a fine up as much as $10,000," said Maxwell.

He says the state made no other formal notification to the more than 2,000 licensed CBD operators including Valencia, who has been trying to spread the word himself.

"So those people are now, because they didn't know, shipping Schedule 1 narcotics, and people are receiving it," said Valencia.

ABC13 reached out to Texas DPS to find out if and how the state will enforce this little-known ban. We are still awaiting their response.

ABC13 spoke with the Texas DSHS to ask about the updated verbiage on Delta 8, a spokesperson says Delta 8 has always been illegal because it is a THC cannabinoid. She could not speak to how the Delta 8 market was allowed to publicly blossom and thrive while being considered illegal. She told ABC13 that the hemp industry asked DSHS for clarification on its legality which prompted the announcement last Friday.

While both men worry for the small businesses who rely on Delta 8 products for the majority of sales, they remain optimistic about the future of cannabis in Texas.

"It's disappointing, but I'm not going to lose my customers and business are going to want our expertise on how to continue thriving in the industry," said Valencia.

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